Mills and Secretary, Department of Social Services (Social services second review)

Mills and Secretary, Department of Social Services (Social services second review) [2021] AATA 1040 (28 April 2021)
Division:GENERAL DIVISION
File Number: 2020/1044
Re:Trevor Mills
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member M East
Date:28 April 2021
Place:Perth

The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 4 February 2020, which affirmed a decision of a delegate of the Respondent to reject the Applicant’s claim for disability support pension, is affirmed.
........[Sgd]................................................................
Member M East
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant meets the eligibility requirements for disability support pension – whether conditions fully diagnosed, treated and stabilised – Tribunal unable to assign impairment ratings – Reviewable Decision affirmed
LEGISLATION
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – s 7
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 6(1), 6(3), 6(3)(a), 6(4), 6(4)(a), 6(4)(b), 6(4)(c), 6(5), 6(6), 11(4)
Social Security Act 1991 (Cth) – ss 26(1), 94(1), 94(1)(a), 94(1)(b), 94(2), 94(3B), 94(3C), 94(5)
Social Security and Other Legislation Amendment Act 2011 (Cth)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Social Services, Social Security Guide, version 1.281
REASONS FOR DECISION
Member M East
28 April 2021
INTRODUCTION

The decision under review is a decision of the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal), dated 4 February 2020, which affirmed the decision of an authorised review officer (the ARO) of Services Australia (Centrelink) to reject the Applicant’s claim for a disability support pension (DSP).
BACKGROUND
The Respondent summarised the relevant facts in her Statement of Facts and Contentions dated 5 November 2020 as follows:
4. The Applicant was born on [date omitted] and was 55 years of age at the date of claim (T28, 134).
5.On 19 April 2019, the Applicant lodged a claim for DSP (T28, 134-163). In his claim, the Applicant listed his conditions as:
a. Double groin hernia mesh repair surgery
b. Removal of descending colon
c. 2 incisional hernia repair mesh surgeries
d. Nerves to right arm pins and needles pinching in discs/vertebrae in neck
e. Multiple level degeneration of mid and lower lumbar spine
6.On 29 May 2019, the Applicant was assessed by a registered nurse and found to be “manifestly medically ineligible” for DSP (T30, 166-167). The medical eligibility assessment recommendation stated that the Applicant’s back pain was not fully diagnosed, treated or stabilised.
7.On 1 June 2019, the Applicant’s claim for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (T31, 168-169).
8.On 10 July 2019, the Applicant requested an internal review of the rejection decision (T32, 170-171). The Applicant provided a radiology report of Dr Tony Briede in respect of his lumbar spine (T33, 172).
9. On 11 September 2019, an Authorised Review Officer (ARO) reviewed and affirmed the original decision to reject the Applicant’s claim for DSP (T38, 181-185). The ARO found none of the Applicant’s conditions (spinal disorder, right arm pins and needles, incisional groin hernia and diverticultitis) were fully treated and stabilised.
10. On 10 December 2019, the Applicant lodged an application for first review of the Agency’s decision to reject his claim for DSP with the AAT1 (T41, 192-194).
11. After a hearing held on 4 February 2020, the AAT1 affirmed the Agency’s decision. The AAT1 found that the Applicant did not qualify for any points under the impairment tables as it was not satisfied that his back and right arm conditions were fully diagnosed, treated and stabilised and it found that there was no impairment arising from his hernia condition. As such, he did not satisfy section 94(1)(b) of the Act (T2, 2-8).
12. On 25 February 2020, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the AAT1 decision (T1, 1).
13. The applicant has submitted a large volume of additional medical evidence to the Tribunal.
14. On 16 September 2020, the Respondent requested that a Job Capacity Assessor (JCA) undertake a file review in respect of the medical evidence on file, including the new medical evidence provided by the applicant. The JCA file review is contained in the Respondent’s tender bundle (TB).
(Original emphasis).
ISSUE
The issue in this matter is whether the Applicant was qualified for the DSP on the day he lodged his claim or within 13 weeks thereafter.
The Tribunal finds that the date of claim is 18 April 2019, making the Qualification Period until 18 July 2019. In making this finding, the Tribunal relies on the ARO’s decision and the Department’s records.[1]
[1] T38, pages 181–4 and T28, pages 134–63.
This requires consideration of whether the requirements as set out in s 94 of the Social Security Act 1991 (Cth) (the Act) were met. In particular, the Tribunal is to consider whether during the Qualification Period the Applicant had:
(a)a physical, intellectual or psychiatric impairment; and
(b)condition(s) that were fully diagnosed, fully treated and fully stabilised (FDTS), causing impairment(s), which attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables); and
(c)a continuing inability to work (CITW).
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 8 April 2021. The Applicant was represented by Ms R Thomas from Welfare Rights & Advocacy Service. The Respondent was represented by Ms S Roberts from Mills Oakley Lawyers.
The Tribunal had the following material before it:
·Applicant’s Statement of Facts, Issues and Contentions, filed with the Tribunal on 18 January 2021, including Applicant’s list of authorities and annexures A to C (Exhibit A1);
·Applicant’s written statement, dated 11 August 2020 (Exhibit A2);
·Applicant’s letter, dated 3 June 2020, including attachments one to 15 (Exhibit A3);
·Applicant’s bundle of documents with attachments one to nine (Exhibit A4);
·occupational therapist’s report, dated 29 January 2020 (Exhibit A5);
·occupational therapist’s report, dated 25 January 2020 (Exhibit A6);
·support letter of Anne Pickard, dated 29 January 2020 (Exhibit A7);
·section 37 T-documents (T1–T44), comprising 277 pages (Exhibit R1);
·supplementary s 37 T-documents (ST1–ST2), comprising six pages (Exhibit R2); and
·Respondent’s Statement of Facts and Contentions, with attachments one and two (Exhibit R3).
LEGISLATIVE FRAMEWORK
The relevant legislation is contained in the following instruments:
(a)the Act;
(b)the Social Security (Administration) Act 1999 (Cth) (the Administration Act);
(c)the Impairment Tables; and
(d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
Policy advice contained in the Guide to Social Security Law (the Guide) is also relevant.[2] The Secretary contends that to ensure consistency in decision making, the relevant policy should be followed unless there are cogent reasons to depart from it.[3]
[2] Department of Social Services, Social Security Guide, version 1.281.
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
Section 94(1) of the Act states:
94. Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a)     The person has a physical, intellectual or psychiatric impairment; and
(b) The person’s impairment is of 20 points of more under the Impairment Tables; and
(c)     One of the following applies:
(i)     The person has a continuing inability to work; …
Impairment Tables
The Impairment Tables instrument is made under s 26(1) of the Act and commenced on 1 January 2012.[4]
[4] Social Security and Other Legislation Amendment Act 2011 (Cth).
Section 6(3) of the Impairment Tables provides that an impairment rating can only be assigned for an impairment that arises from a permanent condition.
Permanent is defined in s 6(4) of the Impairment Tables to have a specific meaning for the purposes of s 6(3)(a). Section 6(4) provides that a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and …
(c)the condition has been fully stabilised; and …
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 6(5) of the Impairment Tables provides that in determining whether a condition is ‘fully diagnosed’ and ‘fully treated’ for the purposes of ss 6(4)(a) and (b), the following must be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states that a condition is ‘fully stabilised’ if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)if the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment. …
(Notes omitted.)
When applying the Impairment Tables, ‘[t]he impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person’.[5]
[5] Impairment Tables s 6(1).
Continuing inability to work
Section 94(2) of the Act states:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years. …
(Original emphasis and notes omitted.)
Section 94(3B) of the Act states:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. …
(Original emphasis and examples omitted.)
Section 94(5) of the Act states:
(5) In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
(Original emphasis.)
Section 94(3C) states:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(Original emphasis.)
Section 7 of the POS Determination states:
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a)the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support.
Requirements for period of participation in program of support
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note: A period during which a person does not participate in a program of support is not to be counted (see section 8).
(3)This subsection is satisfied in relation to a person and a program of support if:
(a)the duration of the program of support was less than 18 months; and
(b)the person completed the entire program during the relevant period.
(4)This subsection is satisfied in relation to a person and a program of support if:
(a)the program of support was terminated before the end of the relevant period; and
(b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5)This subsection is satisfied in relation to a person and a program of support if:
(a)at the end of the relevant period, the person is participating in the program of support; and
(b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
CONSIDERATION
Did the Applicant suffer from a physical, intellectual or psychiatric impairment or impairments during the Qualification Period?
The Respondent has conceded that at the date of claim, being 18 April 2019, and during the Qualification Period, the Applicant suffered from impairments due to his various conditions.[6]
[6] Exhibit R3, para [40].
Having reviewed the medical and other evidence presented, the Tribunal finds that the Applicant suffered from the following impairments during the Qualification Period:
·degeneration of the spine, involving foraminal and canal stenosis, at the cervical and lumbar levels (Back Condition);
·an incisional hernia; and
·pins and needles in his right arm (Neurological Condition);
As such, the Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Were the Applicant’s impairments fully diagnosed, treated and stabilised during the Qualification Period?
Back Condition
The Respondent contends that the Applicant’s Back Condition was not fully treated nor fully stabilised and therefore cannot be assigned an impairment rating.[7]
[7] Exhibit R3, para [54].
The Tribunal was provided with the Applicant’s medical records dating from 2014.[8] The first mention of the Applicant’s Back Condition was in 2015 when a request was made for a CT scan of the lumbar spine.[9]
[8] T4, page 82.
[9] T5, page 85.
The results of that CT scan were reported on 10 February 2015 as follows:[10]
1.Multilevel degenerative change in the mid to lower lumbar spine.
2.Mild to moderate canal stenosis at L4/5 due to a broad based disc protrusion and some thickening of the ligamentum flavum. There is indentation of the thecal sac and bilateral lateral recess narrowing, with likely impingement on the origins of both L5 nerve root sheaths.
3.Broad based posterior disc osteophyte complex at L5/S1, causing mild canal narrowing and indenting the origins of both S1 nerve root sheaths.
4.Moderate degenerative change at other levels without further neural impingement.
5.Incidental note of crossed fused ectopia of kidneys, with fused kidneys lying right of the midline.
[10] T8, pages 88–9.
On 17 February 2015, the Applicant was referred to allied health professional, Mr Matthew Harris, for five sessions of exercise physiology.[11]
[11] T10, page 91.
On 7 April 2016, the Applicant attended a face to face assessment with a registered psychologist assessor for the purposes of an Employment Services Assessment Report.[12] The assessor recorded the Applicant as having attended ‘physiotherapy on one occasion but ceasing due to financial constraints and nil specialist review’. This finding is repeated in reports of subsequent assessments undertaken on 3 February 2017[13] and 16 August 2018.[14]
[12] T18, pages 101–5.
[13] T20, page 109.
[14] T24, page 120.
The Applicant disputed his attendance of physiotherapy sessions at the hearing. When asked how many sessions he attended with the exercise physiologist, the Applicant said that he attended all five sessions.[15] He explained further:[16]
Yes, but I only went to the first five sessions of that first referral, and I attended all five sessions, which was costing me $5 each. At the end they said any further now will be $15 each, or I think it was $120 for ten sessions. Now, at that time the unemployment benefit was only about $520 to $530. I was battling to put a meal on the table at that time. I did the – continually did the same exercises every time I went there, so once I’d learned them off by heart, and did them in the order that they said to, and it was just the same exercises every session to strengthen and reinforce the muscles around my lower-spine, there was no point in paying money to do it when I could do it for free at my home.
[15] Transcript page 18.
[16] Transcript page 20.
When trying to establish a time-frame within which the Applicant attended these sessions, he said it was at the time of the first referral in 2015.[17] He denied that it was at the time of a subsequent referral in 2017, stating ‘[y]es. Because if that’s the first referral, that’s when I did them. Because I didn’t go to the second one, because they were only going to show me the same exercises all over again. And I just wasn’t in the financial position to do that’.[18]
[17] Transcript page 22.
[18] Transcript page 22.
Whilst the Tribunal prefers contemporaneous written evidence over subsequent oral evidence recall of an event, in this case the Tribunal accepts the Applicant’s evidence that he did attend five sessions of physical exercise therapy in 2015. During the hearing, the Tribunal had the benefit of observing the Applicant’s demeanour and found him at all times to be a credible and forthright witness.
At the hearing, the Applicant was also questioned on how he was able to meet his mutual obligation requirements whilst receiving Centrelink payments, given that he reported to have been in considerable pain during that time. He said that he used Naproxen when absolutely necessary. He referred to the fusion of his kidneys, which restricted his use of medication and stated that because of this he had developed an extremely high pain tolerance.[19]
[19] Transcript page 25.

The Applicant said that he also takes Lyrica when necessary and changes his medication to suit his circumstances, bearing in mind the limitations placed on him by his kidneys.[20]
[20] Transcript page 26.
Dr Cibulskis provided a medical report dated 9 April 2019, just prior to the Applicant’s DSP claim made on 18 April 2019.[21] The Tribunal notes the statements by the Applicant at the hearing that this document had been incorrectly described as a ‘referral’ by the AAT1. The Tribunal accepts the Applicant’s explanation that this document is in fact a report by Dr Cibulskis, and not a referral.
[21] T27, page 129.
Dr Cibulskis’ report noted that as at 9 April 2019, treatment was an exercise program and physiotherapy, the symptoms had a moderate to severe effect on the Applicant’s daily activities and the prognosis was that his condition will continue to deteriorate.
A ‘Disability Support Pension Medical Eligibility Assessment Recommendation’ (DSP Medical Eligibility Assessment Recommendation) was prepared on 29 May 2019 with the recommendation that the Applicant was ‘[m]anifestly medically ineligible’[22] because the conditions claimed were not fully diagnosed, treated and stabilised.
[22] T30, page 166.
The DSP Medical Eligibility Assessment Recommendation further stated:[23]
A referral type document is noted 9/4/2019, from Dr Cibulskis, noting that the client has a past history of Lumbar back pain and neck pain.
There is no further medical information noted for current application for DSP.
For noted conditions to be supported as fully diagnosed, treated and stabilised the claimant needs to provide supporting medical information that they have undertaken or completed reasonable treatment for the conditions. Reasonable treatment for these condition [sic] includes support of a Surgeon for opinion and management of Back pain. Affective allied health interventions for all conditions including physiotherapy. Such treatment may be likely to result in significant functional improvement and enable the claimant to undertake work in the next 2 years.
[23] T30, page 166.
The Applicant was referred for a further CT scan of his lumbar spine in July 2019.[24] The report of the scan noted:
1.At the level of L4/5 there is a moderate disc bulge with moderate central canal stenosis contributed to by congenitally short pedicles without overt nerve sheath impingement.
2.There is further mild central canal stenosis at the levels of L3/4 and L5/S1 with a combination of disc bulges, mild disc protrusion as well as congenitally short pedicles.
3.No discrete nerve sheath impingement within the supine position of imaging.
4.Moderately severe left-sided facet joint degenerative change at L5/S1.
5.Incidental cross-fused ectopia of the kidneys.
[24] T33, page 172.
In August 2019, the Applicant was also referred to the Royal Perth Hospital, Bentley Health Services for specialist pain management treatment.[25] Unfortunately, due to the extensive delays within the public health system, at the date of the hearing the Applicant was still waiting for an appointment.[26]
[25] T36, page 177.
[26] Transcript page 32.
A medical certificate dated 13 November 2019 by Dr Cibulskis further stated that the Applicant’s past treatment had been nonsteroidal anti-inflammatory drugs and an exercise program and that he is currently awaiting neurosurgical review.[27]
[27] T39, page 186.
The Applicant provided further reports to the Tribunal which were admitted into evidence at the hearing. These further reports included the report of Ms Kate Hatley, occupational therapist, created on 23 January 2020 and updated on 25 and 29 January 2020.[28]
[28] ST1, pages 1–4 and Annexure A to Exhibit A1
[29] ST1, pages 5-6 and Annexure B to Exhibit A1
[30] Exhibit A4, Attachment 9.
Dr Cibulskis provided further reports dated 3 February 2020 and 17 August 2020.[29] In his report dated 17 August 2020, Dr Cibulskis also refers to a report from the Royal Perth Hospital Comprehensive Spinal Outpatient Clinic dated 25 May 2020. That report was completed by Ms Nicky Fortescue, Advanced Scope Physiotherapist.[30]
Dr Cibulskis, in his report dated 17 August 2020 opined that as at 18 April 2019, the medical reports substantiate the Applicant’s claim that he has ‘permanent and severe physical medical conditions’ affecting his lumbar and cervical spine causing associated pain.
He also stated that a referral to an orthopaedic or neurological specialist would not result in any resolution of the spinal conditions and that ‘treatment with medication and prescribed exercises [is] appropriate and reasonable’.
Dr Cibulskis stated further that:
Subsequently referrals were made for [the Applicant] to attend the Perth Pain Clinic and the Royal Perth Hospital Spinal Unit. In both cases it was not anticipated that the diagnosis would change but some assistance would be offered to help Mr Mills deal with pain and maximise his functional capacity.
It should be noted that the system for referrals to specialist services can be very slow and for patients without financial resources there is no alternative options for an expedited appointment. [The Applicant] does not have health insurance nor financial resources to obtain priority in appointments and this disadvantage is borne out by the wait he is still experiencing for an appointment at Royal Perth Pain Clinic, to which he was referred in August 2019.
Both Dr Cibulskis and Ms Fortescue agree that surgical intervention would not rectify the Applicant’s condition and that an injection would only provide temporary relief.
Dr Cibulskis did note that the Applicant was willing to explore services for pain education and exercises to assist ‘management and stabilisation of his condition, notwithstanding the diagnosis that his condition is degenerative’.
The Applicant was assessed by Ms Fortescue when he was referred to the Department of Spinal Surgery at Royal Perth Hospital. As he was not assessed as a suitable candidate for surgery, he was discharged from that clinic. During her assessment Ms Fortescue noted:
I talked about the effects of mood and stress on wind-up of pain and the need for some pain education and graded exercise with teaching him to breathe more normally and relax his trunk muscles to try and wind-down his nervous system.
To this end, I will refer him to the Physiotherapy Department at Royal Perth Hospital for some pain education and self-management instruction particularly, relating to breathing and muscle relaxation and decreasing his fear around forward bending. We will also try to involve mobility and strengthening exercises around his neck and upper limbs.
Trevor certainly is significantly functionally disabled by his back pain and his neck pain and stiffness. He was unable to turn his head without moving his trunk in both directions and was unable to bend forward to pick an object up from the floor without significant knee bending.
My impression is that his spinal condition could be considered to be fully stabilised as it really hasn’t changed a lot in the last 5 years, though he hasn’t had quite enough input in the way of pain education and movement modification from physiotherapy. However, even though I am going to try and organise this sort of treatment for him, I don’t expect it to show enough functional improvement for him to be employable in the next several years.
(Emphasis added.)
In his oral evidence, the Applicant said that he underwent five months of physiotherapy from May until October 2020. His evidence in response to questioning by Ms Roberts was that certain exercises increased flexibility in his neck and to some degree in his back, and that they produced endorphins which made him want to do more physical work.[31]
[31] Transcript page 39.
The Tribunal accepts that the Applicant has suffered from pain in his lumbar and cervical spine for many years as evidenced by the contemporaneous medical notes of his treating general practitioner, Dr Cibulskis and the radiological evidence.
The Tribunal finds on the basis of the oral and documentary evidence that the Applicant attended five sessions of physical therapy in 2015 and thereafter did the exercises at home, unsupervised. He also takes limited amounts of pain medication. The medical evidence supports a finding that surgical intervention is not warranted for his condition.
The Tribunal further finds that the Applicant has been on a waiting list for referral to a pain clinic since 2019 and is still waiting for an appointment.
The evidence also demonstrates that the Applicant received further physiotherapy in 2020, which in his own words assisted with his flexibility and his pain levels.
For the Tribunal to assign an impairment rating for the Applicant’s Back Condition it needs to be fully diagnosed, treated and stabilised as at the date of the Applicant’s claim or within the Qualification Period.
Whilst the Tribunal has sympathy for the Applicant and the chronic pain he is living with, the Tribunal is unable to find that during the Qualification Period his condition has been fully treated and stabilised. The evidence is clear that the only treatment the Applicant had undertaken prior to the conclusion of the Qualification Period was exercises at home, which he had learned in 2015. By the Applicant’s own admission, further treatment he had undertaken in 2020 had assisted him. Even though the radiological evidence indicates there has not been further degeneration in his spine, this is not the test to which the Tribunal must have regard.
Section 6(6) of the Impairment Tables provides that a condition is ‘fully stabilised’ for the purposes of ss 6(4)(c) and 11(4) of the Impairment Tables if: a person has undertaken reasonable treatment and any further treatment is unable to result in significant functional improvement enabling the person to undertake work within the next two years; or the person has not undertaken reasonable medical treatment and significant functional improvement with the treatment is not expected to occur or there is a medical or other compelling reason not to undertake the treatment.
At the time at which the Applicant lodged his application for DSP, he had not been referred to the pain specialist clinic nor had he undertaken the physiotherapy which he described as beneficial to his flexibility.
Because the Applicant has been referred to a pain specialist clinic and also has received further physiotherapy after the date on which he lodged his claim, the Tribunal cannot find that his back condition was fully treated and fully stabilised during the Qualification Period. Therefore, this condition is not permanent, and the Tribunal is unable to assign an impairment rating.
Other conditions
Incisional hernia
The Applicant has submitted ‘that his condition of an incisional hernia has been resolved following surgery and [that he] therefore does not seek assessment of this condition for his qualification for DSP’.[32]
[32] Exhibit A1, paragraph [10].
The Tribunal has therefore not considered this condition.
Neurological Condition
The Applicant has submitted that:[33]
he does not have medical evidence to demonstrate the functional impact that his neurological condition had on his right arm during the qualification period. For this reason he does not seek an assessment of this condition for his qualification for DSP at the date of claim.
[33] Exhibit A1, paragraph [11].
The Tribunal has therefore not considered this condition.
CONCLUSION
The Tribunal finds that the Applicant suffered impairments during the Qualification Period for the purposes of s 94(1)(a) of the Act, namely a hernia, a neurological condition and a back condition (degeneration of the spine, involving foraminal and canal stenosis at the cervical and lumbar level).
The Tribunal is unable to consider the conditions of incisional hernia and the neurological condition for the reasons expressed above.
The Tribunal finds that at the date of the Applicant’s DSP claim and during the Qualification Period, the medical and other evidence before the Tribunal does not demonstrate that the Applicant’s Back Condition was fully treated and stabilised. Accordingly, it cannot be considered as permanent and cannot be assigned an impairment rating.
As none of the Applicant’s impairments are permanent, the Applicant does not satisfy
s 94(1)(b) of the Act.
Consequently, the Tribunal finds that the Applicant does not qualify for a DSP as he must meet all criteria required by s 94 of the Act, which the Applicant does not.
DECISION
The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 4 February 2020, which affirmed a decision of a delegate of the Respondent to reject the Applicant’s claim for disability support pension, is affirmed.

I certify that the preceding 67 (sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Member M East

...[Sgd].....................................................................
Associate
Dated: 28 April 2021

Date of hearing: 8 April 2021

Advocate for the Applicant:
Ms R Thomas, Welfare Rights & Advocacy Service

Solicitors for the Respondent: Ms S Roberts, Mills Oakley Lawyers

[2021] AATA 1040

28 April 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Date of hearing:	8 April 2021
Advocate for the Applicant:	Ms R Thomas, Welfare Rights & Advocacy Service
Solicitors for the Respondent:	Ms S Roberts, Mills Oakley Lawyers